I-Iowell, V. C.
. The complainant assumes that there is a rule of law in this state whereby he may obtain compensation for the injuries and inconveniences suffered by him, upon the ground that his damage is peculiar and exceptional, and is to be differentiated from the damage suffered by other members of the public in front of whose property the sewer in question, is being constructed. He admits that the use of the street for the construction of a sewer is a legitimate street use, and he claims no damage on account of the construction of the sewer on his side of the centre line of the highway. Neither does he claim that there has been a physical taking of any of his tangible property within the meaning of the constitutional limitation. What he does say is that he is deprived of the use of his accustomed approach to his premises from the street, and that he is annoyed by vibration and by dust from the works, and that these items of damage exceed those accruing to the other members of the community, and amount to a taking of his property. So far as the acts complained of amount to a trespass, the complainant has his remedy in the common law courts. As to the allegation that the circumstances set out amount to a taking of land without compensation, I find no authority in the cases on the complainant’s brief, nor indeed have I been able to find elsewhere any case which supports his contention.
On the other hand, there is abundant authority in our own state for the contrary proposition. I need cite only the case of Baseman v. Pennsylvania Railroad Co., 50 N. J. Law (21 Vr.) [173] 235; affirmed, 52 N. J. Law (23 Vr.) 221. In that case there was an attempt to recover damages against a railway company for. a nuisance claimed to have arisen out of the manner in which it ran its trains in close proximity to the plaintiff’s dwelling-house. It was held that so long as the railway company operated its trains in the manner prescribed by its charter, and without negligence, it was not liable for the incidental damages from vibration, noise, smoke and smells which were necessarily caused in the conduct of the railway company’s business. What would otherwise amount to a nuisance had been legalized by the authority given to the railway company to construct and operate its railroad. The chief-justice says: “When property has been, incidentally injured, no matter to what extent, as an unavoidable result of a public improvement, such loss has always been deemed remediless, and it has never been supposed that property so injured was Taken’ in the constitutional sense for the public use. All the public improvements in the state have been built and are now resting on this foundation.”
If this rule can be lawfully applied to a railway corporation, which is engaged in both public and private business, with how much greater force does it apply to the present ease in which the defendants are engaged in a great public work—solely public— involving the public affairs of a drainage district composed of many municipalities and inhabited by hundreds of thousands of people. Again, it is well understood that the public domain and all the property of the public is subject to the direction and control of the legislature, and that whatever damage is caused to the individual by the action of the legislature in regard thereto is damnum absque injuria. This body may authorize the erection of what would otherwise be a nuisance in the busiest streets of our public cities, and nobody could claim damages therefor, no matter to what extent he is injured, and such injury cannot amount to a taking of his property. I take it that section 5 of the act of 1907 gives to the commissioners full power and authority to use and occupy the public streets for the purpose for which they appear to have occupied Hamburg place.
The argument of the chief-justice in the Beseman Case is supported by the opinion of Lord Cairns in the case of Hammer-[174] smith Railway Co. v. Brand, L. R. 4 H. L. 171; 38 L. J. Q. B. 265. In that case it was held by the house of lords that the owner of a house and premises adjoining a railway, but not touched by it, which was depreciated in value through vibration, noise and smoke caused by the running of the trains, was not entitled to damages or • compensation. The judgment was not unanimous, but Lord Cairns, who dissented, agreed with the majority in relation to the point now being discussed, and stated as follows: “It appears to me that the effect of the legislation on this subject is to take away entirely any right of action on the part of the landowner against the railway company for damage that the landowner has sustained. It must be taken, I think, from the statements in this case that the railway could not be used for the purpose for which it was intended without the consequences of this vibration. It is clear to demonstration that the intention of parliament was that tire railway should be used. If, therefore, it could not be used without vibration, and if vibration necessarily caused damage to the adjacent landowner, and if it was intended to preserve to the adjacent landowner his right of action, the consequence would be that action after action would be maintainable against the railway company for the damages which the landowner sustained, and after some actions had been brought and succeeded, the court of chancery would interfere by injunction and would prevent the railway being worked, which, of course, is a reductio ad absvrclum, and would defeat the intention of the legislature. I have, therefore, no hesitation in arriving at the conclusion that no action would be maintainable against the railway company.” See, also, Canadian Pacific Railway Co. v. Roy (1902), A. C. 220; 71 L. J. P. C. 51.
To the same effect are the Massachusetts cases, which deal with a situation very similar to that in which the defendants here are engaged. In the case of Lincoln v. Commonwealth, 164 Mass. 1, 368, and Chelsea Dye House v. Commonwealth, 164 Mass. 350, practically the same questions arose that are now being discussed, and the same result was reached as was reached in the Beseman Gase and in the Hammersmith Railway Company Gase.
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I-Iowell, V. C.
. The complainant assumes that there is a rule of law in this state whereby he may obtain compensation for the injuries and inconveniences suffered by him, upon the ground that his damage is peculiar and exceptional, and is to be differentiated from the damage suffered by other members of the public in front of whose property the sewer in question, is being constructed. He admits that the use of the street for the construction of a sewer is a legitimate street use, and he claims no damage on account of the construction of the sewer on his side of the centre line of the highway. Neither does he claim that there has been a physical taking of any of his tangible property within the meaning of the constitutional limitation. What he does say is that he is deprived of the use of his accustomed approach to his premises from the street, and that he is annoyed by vibration and by dust from the works, and that these items of damage exceed those accruing to the other members of the community, and amount to a taking of his property. So far as the acts complained of amount to a trespass, the complainant has his remedy in the common law courts. As to the allegation that the circumstances set out amount to a taking of land without compensation, I find no authority in the cases on the complainant’s brief, nor indeed have I been able to find elsewhere any case which supports his contention.
On the other hand, there is abundant authority in our own state for the contrary proposition. I need cite only the case of Baseman v. Pennsylvania Railroad Co., 50 N. J. Law (21 Vr.) [173] 235; affirmed, 52 N. J. Law (23 Vr.) 221. In that case there was an attempt to recover damages against a railway company for. a nuisance claimed to have arisen out of the manner in which it ran its trains in close proximity to the plaintiff’s dwelling-house. It was held that so long as the railway company operated its trains in the manner prescribed by its charter, and without negligence, it was not liable for the incidental damages from vibration, noise, smoke and smells which were necessarily caused in the conduct of the railway company’s business. What would otherwise amount to a nuisance had been legalized by the authority given to the railway company to construct and operate its railroad. The chief-justice says: “When property has been, incidentally injured, no matter to what extent, as an unavoidable result of a public improvement, such loss has always been deemed remediless, and it has never been supposed that property so injured was Taken’ in the constitutional sense for the public use. All the public improvements in the state have been built and are now resting on this foundation.”
If this rule can be lawfully applied to a railway corporation, which is engaged in both public and private business, with how much greater force does it apply to the present ease in which the defendants are engaged in a great public work—solely public— involving the public affairs of a drainage district composed of many municipalities and inhabited by hundreds of thousands of people. Again, it is well understood that the public domain and all the property of the public is subject to the direction and control of the legislature, and that whatever damage is caused to the individual by the action of the legislature in regard thereto is damnum absque injuria. This body may authorize the erection of what would otherwise be a nuisance in the busiest streets of our public cities, and nobody could claim damages therefor, no matter to what extent he is injured, and such injury cannot amount to a taking of his property. I take it that section 5 of the act of 1907 gives to the commissioners full power and authority to use and occupy the public streets for the purpose for which they appear to have occupied Hamburg place.
The argument of the chief-justice in the Beseman Case is supported by the opinion of Lord Cairns in the case of Hammer-[174] smith Railway Co. v. Brand, L. R. 4 H. L. 171; 38 L. J. Q. B. 265. In that case it was held by the house of lords that the owner of a house and premises adjoining a railway, but not touched by it, which was depreciated in value through vibration, noise and smoke caused by the running of the trains, was not entitled to damages or • compensation. The judgment was not unanimous, but Lord Cairns, who dissented, agreed with the majority in relation to the point now being discussed, and stated as follows: “It appears to me that the effect of the legislation on this subject is to take away entirely any right of action on the part of the landowner against the railway company for damage that the landowner has sustained. It must be taken, I think, from the statements in this case that the railway could not be used for the purpose for which it was intended without the consequences of this vibration. It is clear to demonstration that the intention of parliament was that tire railway should be used. If, therefore, it could not be used without vibration, and if vibration necessarily caused damage to the adjacent landowner, and if it was intended to preserve to the adjacent landowner his right of action, the consequence would be that action after action would be maintainable against the railway company for the damages which the landowner sustained, and after some actions had been brought and succeeded, the court of chancery would interfere by injunction and would prevent the railway being worked, which, of course, is a reductio ad absvrclum, and would defeat the intention of the legislature. I have, therefore, no hesitation in arriving at the conclusion that no action would be maintainable against the railway company.” See, also, Canadian Pacific Railway Co. v. Roy (1902), A. C. 220; 71 L. J. P. C. 51.
To the same effect are the Massachusetts cases, which deal with a situation very similar to that in which the defendants here are engaged. In the case of Lincoln v. Commonwealth, 164 Mass. 1, 368, and Chelsea Dye House v. Commonwealth, 164 Mass. 350, practically the same questions arose that are now being discussed, and the same result was reached as was reached in the Beseman Gase and in the Hammersmith Railway Company Gase.
The very point elaborated by the complainant on the argument arose in the case of the Northern Transportation Co. of [175] Ohio v. Chicago, 99 U. S. 635. There the city of Chicago, tinder legislative authority, was engaged in constructing a tunnel to continue La Salle street under the Chicago river. To do this work it was necessary to erect a coffer-dam in the river immediately in front of the plaintiff’s property. The case was argued on the assumption that the erection of the coffer-dam and the necessary excavations in the street constituted a public nuisance, causing special damage to the plaintiffs beyond those incident to the public at large, and hence it was inferred that the city was responsible to them for the injurious consequences resulting therefrom. It was held that the assumption was unwarranted and that the act complained of could not be a nuisance so as to give a common law right of action, upon the ground that the work that was being done was authorized by the legislature and was being done in a lawful manner. Mr. Justice Strong says in the opinion: “Here the tunnel, of which the plaintiffs complain, or rather its construction, was authorized by an act of the legislature of the state, and directed by an ordinance of the city councils. * * * The state, and the city councils,'as its agents, had full power over the high ■ways of the city, to improve them for the uses for which they were made highways, and the construction of the tunnel was an exercise of that power. Since La Salle street was extended across the river, the city not only had the power but it was its duty to provide for convenience of passage. This it could do either by the erection of a bridge or by the construction of a tunnel under the river and along the line of the street. And the granted power by the legislature to build a bridge or construct a tunnel carried with it, of course, all that was necessary for the exercise of the power. We do not understand this to be controverted by the plaintiffs in error. Their argument is, that though the city had the legal right to construct the tunnel, and to do what was necessary for its construction, subject to the condition that in doing the work there should be no unnecessary interference with private property, yet it was liable to make compensation for the consequential damages caused to persons specially injured. To this we cannot assent.”
It cannot escape notice that the argument made in that case is the precise counterpart of the argument made in this case. [176] That case has had a wide course of citation, and its doctrine has been generally approved throughout the United States. See Rose’s Notes to 99 U. S. 635.
The cases above referred to arrange themselves into two classes, viz., (1), those dealing with questions of damages during the construction of a public work, of which the Chicago Case is an example, and the other (2), questions of damage claimed to arise from the operation of the work after the construction shall have been finished, of which the Beseman Case and the Hammer-smith Railway Case are examples. It appears from the cases cited that there is no difference in principle between the two, and that therefore the claim of the complainant in this case is without foundation.
The result is that the motion for preliminary injunction must be denied.